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Court of Criminal Appeal 13 April 2022

Doyle v R

[2022] NSWCCA 81

Also reported as (2022) 108 NSWLR 1
Drugs

Citation: Doyle v R [2022] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 13 April 2022
Judge(s): Bell CJ; Bellew J; Ierace J

Background

The applicant pleaded guilty in the Local Court to supplying a large commercial quantity of a prohibited drug, namely 50 kilograms of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The guilty plea was entered at the earliest opportunity, during committal proceedings.

The District Court sentenced the applicant to eight years' imprisonment with a non-parole period of five years. The sentencing judge also took into account a further offence of knowingly dealing with the proceeds of crime, involving approximately $520,300, as a Form 1 matter. Importantly, the drug transaction at the centre of the offence had been facilitated by undercover law enforcement officers, and no actual drugs existed or were disseminated into the community.

The applicant sought leave to appeal on a single ground: that the sentencing judge had misapplied s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) by impermissibly conflating the utilitarian value of the early plea with the applicant's remorse and his willingness to facilitate the course of justice.

  • Whether the sentencing judge erred by attributing the 25% guilty plea discount under s 25D not only to the utilitarian value of the plea but also to the applicant's remorse and his facilitation of the administration of justice.
  • Whether the absence of actual drugs in the transaction constituted a mitigating factor for sentencing purposes.
  • Whether, having identified a legal error vitiating the original sentence, the Court of Criminal Appeal should impose a lesser sentence on resentencing.

Decision

The Court unanimously found that the sentencing judge had erred in her application of s 25D. Section 25D mandates a discount solely for the utilitarian value of an early guilty plea. It operates mechanically: once the relevant timing of the plea is established, the specified percentage reduction must be applied. The sentencing judge's conflation of that statutory discount with the applicant's remorse and willingness to facilitate justice was an error of law, because those factors are conceptually distinct and must be considered separately as part of the instinctive synthesis of sentencing, under ss 21A(3)(i) and 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) respectively.

The Court also rejected the submission that the absence of actual drugs should operate as a mitigating factor. The applicant had participated in a purported drug transaction of extreme scale, and the fact that the transaction was facilitated by law enforcement and that no drugs existed did not reduce the objective seriousness of the offence.

Despite confirming the legal error, the Court declined to impose a lesser sentence. Bell CJ undertook a fresh sentencing exercise, taking into account the applicant's remorse, his prospects of rehabilitation, hardship to his family arising from incarceration, the onerous conditions of his custody, and the special circumstances found by the sentencing judge. Bellew J emphasised that, however powerful an offender's subjective case, there must be reasonable proportionality between the gravity of the offending and any sentence imposed. All three judges concluded that no lesser sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) operates mechanically: the prescribed discount must be applied for the utilitarian value of an early guilty plea and for that reason alone. It does not permit a sentencing court to bundle in related considerations such as remorse or facilitation of justice.
  • Remorse and willingness to facilitate the course of justice remain relevant sentencing considerations, but they must be addressed separately as part of the instinctive synthesis of sentencing, under ss 22A and 21A(3)(i) respectively.
  • The Court of Criminal Appeal confirmed that the absence of actual drugs in an undercover operation does not constitute a mitigating factor in sentencing for a large commercial supply offence.
  • In dismissing the appeal despite identifying a legal error, the Court reaffirmed that an appellate resentencing exercise requires reasonable proportionality between the gravity of the offending and the sentence imposed, and that a powerful subjective case cannot override that requirement.
  • Where a sentencing discretion is vitiated by error, the appellate court must resentence afresh; it is not confined to asking whether the original sentence was manifestly excessive.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW) s 25(2), sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3)(i), 22A, 25D, 33
- Crimes Act 1900 (NSW) s 193B(2)
- Criminal Appeal Act 1912 (NSW) s 6(3)
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) sch 2

Cases
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bae v R [2020] NSWCCA 35
- Baden v R [2020] NSWCCA 23
- Lu v R; Huang v R [2021] NSWCCA 68
- Edwards v R [2021] NSWCCA 57
- Abousleiman v R [2021] NSWCCA 110
- Taysavang v R; Lee v R [2017] NSWCCA 146
- R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
- AB v R [2013] NSWCCA 273
- R v Girard [2004] NSWCCA 170
- Carter v R [2018] NSWCCA 138
- Greentree v R [2018] NSWCCA 227